Property Fall 2009
Professor Milot
Outline
Chapter 1 – Emergence of Property Rights
I. Classic Perspectives on Property
a. Maine – Ancient law
b. Aquinas – Summa Theologica
c. Locke – Two Treatises on Govt.
d. Bentham – Theory of Legislation
e. Smith – Wealth of Nations
II. Right of Publicity
a. Definition
i. Involves the value of a person’s name and the associated property rights that come along with it.
ii. Person must have done something to commercialize their name.
b. Image and voice can be a protected property right in some instances
c. Cases
i. TN v. Presley (Elvis’s name)
1. Nonprofit using Elvis’s name, heirs wanted to stop it. Is a celebrity’s right to publicity descendible to the estate after death, according to TN state law?
2. Held that yes it was a property right and therefore descendible after death and the heirs could stop the nonprofit from using Elvis’s name.
ii. Midler v. Ford Motor CO (sound alike used in commercial)
1. A sound alike was used to imitate the voice of a famous celebrity in a commercial. Celebrity sued for violation of property rights. Is voice a protected property right?
2. Held (narrowly) that a voice is distinctive and personal and part of a person’s identity therefore a protected property right.
iii. Hardin – Tragedy of the commons
iv. Heller – Tragedy of the anticommons
v. ETW Corp. v. Jireh Pub. (Tiger Woods)
1. Tiger Woods image was used to create an artistic expression of his likeness. Is the first amendment right to creative expression greater than property right in protecting one’s image?
2. Held that the 1st amendment right to creative expression over rides property right of one’s image in this instance.
III.Cultural Property
a. Definition
i. Property which on religious or secular grounds is specifically designed by each state as being of importance for archeology, prehistory, literature, art, or science.
ii. Ex. Works of art, native plants, historical buildings, etc.
iii. Seeks to limit the rights of individuals to assert property rights
iv. Idea that some property belongs to society as a whole.
v. Depends on legislation, treaties, etc. instead of common law
b. Cases
i. Willcox v. Stroup (SC civil war governor’s papers)
1. Willcox found papers of SC civil war governor and state sued to keep him from selling them claiming them as the property of the state. Are governor’s papers cultural property belonging to the state?
2. Held that papers are private property of Willcox since there existed no law during civil war that treated papers as public property.
ii. Carter v. Hemsley-Spear Inc. (crazy sculpture inside building)
1. A group of artists constructed a sculpture inside a building. Building was then sold, can new owner remove the sculpture?
2. Held that artists were employees and therefore work was made for hire and excluded from property rights in it, owner can remove. (Visual Artists Rights Act of 1990, VARA, applied)
iii. Note on Law and Econ
iv. Calabresi and Melamed – Property Rules
v. U.S. v. Schultz (stolen Egyptian artifacts)
1. D took artifacts from Egypt and resold them claiming that they were in a collection prior to the enactment of the 1983 Egyptian law making all artifacts property of the state. Were these artifacts property of the state under the ambiguous law?
2. Held, yes the artifacts were property of Egypt (National Stolen Property Act, NSPA)
Chapter 2 – Personal Property
I. Distinction between Real and Personal Property
a. Real property
i. Land and anything growing on it, attached to it, or erected on it, excluding anything that may be severed without injury to the land.
b. Personal property
i. Any movable or intangible thing that is subject to ownership, other than that which is classified as real property.
c. Wood v. Wood (Corn Crop)
i. P deeded land to D (wife) without reservation regarding the ownership of the corn crop on the land. Rental agreement where owner was entitled to 1/3 o
rface and never reclaimed by their owner.
1. American courts have generally declined to create a separate category and rather apply mislaid property concept.
k. Cases
i. Armory v. Delamirie (chimney sweep found jewel and held by goldsmith)
1. Chimney sweep found jewel and takes it to shop of goldsmith. GS examines it and refuses to return it to CS. Does CS have right to possession?
2. Held that finder of object has right to possession against all but the true owner.
ii. Bridges v. Hawkesworth (banknotes on floor of shop)
1. P found parcel of banknotes on floor of D’s shop. Who has right to possession of notes, finder or store owner?
2. Held P entitled to possession b.c. notes had not been intentionally deposited in shop.
iii. South Staffordshire Water CO v. Sharman (rings found in pool by cleaners)
1. P (landowner) hired D to clean pool on property. D found two rings while cleaning pool. Who is entitled to possession of rings found on private property by individuals hired by landowner?
2. Held that landowners were entitled to possession of rings since possessor of land should be presumed to have an intent to exercise control over any object found on it.
iv. Hannah v. Peel (solider locating broach in windowsill)
1. P, a soldier billeted in house owned by D, found broach in windowsill of room. Was P (finder) or D (landowner) entitled to ownership of broach?
2. Held that P entitled to possession over D because D have never actually lived in the house and therefore never been physically in possession of the premises.
v. Corliss v. Wenner (gold coins found while excavating driveway)
1. Landowner hired contractor to construct driveway on property. Contractor uncovered glass jar with gold coins. Who has right to possession of coins, landowner or finder?
